This judgment will also decide W.P. No. 256446/2018 as common questions of law and facts are raised in both these petitions. Through these Constitutional petitions the petitioners have challenged the notification dated 09.3.2017 and resolution No. 881 dated 10.4.2017. The petitioners are also seeking direction against the respondents to conduct departmental Divisional Account Officers (DAO) Examination forthwith in the light of the applicable rule and policy . Prayer is also made to regularize the services of the petitioner against post of DAO in BPS-17, with all benefits as petitioners already performing their duties against the said post since 201 1.
2. Relevant facts are that petitioners in both these petitions are performing their duties as Divisional Account Officers in the respondent department. In order to become entitled to promotion in BPS-17, the petitioners participated and qualified the departmental examination Part-I in December , 2012 in accordance with the rules and regulation prevalent at the relevant time. They also completed their practical training and as such had expectations for promotion in BPS-17 subject to passing of Part-II of the examination, which was scheduled to be conducted in year 2013. However , no such examination took place, and in the meanwhile the respondents issued impugned notification dated 09.3.2017 whereby it is held that the examination of DAO will be conducted by the Federal Public Service Commission (FPSC). The respondent department vide Resolution No. 881 dated 10.4.2017 also decided that promotion examination of DAO will now be conducted by the FPSC. The petitioners being aggrieved of said notification dated 09.3.2017 and resolutions dated 10.4.2017 have filed these Constitutional petitions.
3. The learned counsel for the petitioners submits that as petitioners have already appeared in Part-1 of promotional examination in 2012, therefore, the impugned notification and resolution cannot be applied retrospectively . Further submits that petitioners being already performing their duties against the post of DAO for the last so many years, are entitled to be regularized in BPS-17 against post of DAO.
4. The learned counsel for the respondents, on the other hand, submits that petitioners are performing their duties in BPS-17 in officiating capacity in their own pay scale and not as regular employee in BPS-17. Further submits that the competent authority has decid ed through impugned notification and resolution, that the promotion examination shall be conducted through FPSC and said policy being reason able is also applicable to the petitioners.
5. Heard. The moot legal question require determination in these cases is that whether impugned notification dated 09.3.2017 and resolution dated 10.4.2017 (whereby it is prescribed that examination for, DAO in BPS-17 shall be conducted by FPSC) can be applied retrospectively to the petitioners who have already , participated and qualified in departmental examination Part-I in December , 2012 and are waiting for their promotion subject to passing Part-II of the examination. This legal question was also raised by similarly placed DAOs before the learned Peshawar High Court in W.P. No. 1806/2017 where vide judgment dated 06.11.2019 the learned Court inter-alia held that the notification dated 09.3.2017 cannot be applied retrospectively to DAOs who had already successfully went through Part-I of the departmental examination and also completed the prescribed training in accordance with the rules and regulation prevailing before the impugned notification. Consequently , the learned Peshawar High Court allowed the writ petition to that extent and directed the respondent department to conduct the departmental Divisional Officers Examination within six months. However , the prayer of the petitioners in said writ petition for regularizing their services in BPS-17 with all benefits was specifically declined.
6. The said judgment of the learned Peshawar High Court was challenged by the department in Civil Appeal No. 597/2020. However , the said appeal was dismissed and judgment of the learned Peshawar High Court was upheld by the honorable Supreme Court on 10.2.2021 in following terms: "11. It is a settled principle of law that a notification which is duly published in the official gazette takes effect from the date on which it is published except otherwise provided in the notification itself In view of the fact that neither the notification had validly been issued on the basis of powers available to the Controller General of Accounts and previous approval of the Federal Government nor does it appear to have been published in the official gazette. As such, the validity of the notification and its impact on the rights of the responden ts was correctly assessed and determined by the learned High Court through the impugned judgment.
12. It is also apparent from the record and not denied by the Appellant that the respondents had already successfully completed Part-I of the departmental examination and received the prescribed training in accordance with the Rules and Regulations prevailing at the relevant time. We are therefore not impressed by the argument of the learned DAG that the Appellant could have changed the mode of examination in 2017 keeping in view the fact that Part-II of the examination was due to be held in 2013 and was not held for the next four years without any fault on the part of the respondents. Further , a right had already accrued in favour of the respondents by reason of passing Part-I of the departmental exam ination which could not have been taken away merely on the basis of a notification issued by the office of Controller general of Accounts without following due process of law .
13. Further , modification of the regulations notwithstanding the fact that it did not fulfil the legal and procedural requirements could not have affected any right or privilege acquired under the previous regulations in favour of the respondents. We are therefore convinced that the learned High Court had valid reasons and lawful justification which was duly recorded in the impugned judgment in coming to the conclusion that the respondents were entitled to undergo Divisional Accounts Officers' Examination Part-II to be conducted by the department itself as per the previous regulations. The impugned judgment of the learned High Court records valid reasons for its conclusion and after hearing the learned Law Officer and going through the record, we are not persuaded to reach a conclusion different from the one arrived at by the learned High Court.
14. For reasons recorded above, we do not find any merit in this appeal. It is accordingly dismissed".
7. The law settled by Hon'ble Supreme Court in afore-noted judgment is on all four to the facts and circumstances of these cases, therefore, the petitioners are also entitled for same relief. Accordingly respondents are directed to issue necessary direction to conduct the departmental Divisional Account Officers examination Part-II within six months positively as per the rule and regulations prevailing prior to the impugned notification and resolution.
However , the prayer of the petitioners for regularizing their services against the post of DAO in BPS-17, is declined being also not allowed in similar matter by learned Peshawar High Court and upheld by honourable Supreme Court.
8. These writ petitions are partially allowed in above terms.